The justiciability of 'social rights': evidence from crisis-ridden Greece

Abstract

This paper suggests, however, that 'social rights' is more of a political than a legal notion and that the focus of the legal debate should rather shift to the kind of state obligation that is at stake, differentiating between the different kinds of 'status' proposed by Jellinek. It also proposes that a new 'status' should be added to those proposed by Jellinek, namely the 'status aequui' or 'status aequitatis', meaning the horizontal application of the principle of equality and non-discrimination. This concept is believed to offer a better insight into the question of the extent of the courts' competence to adjudicate than the traditional division between civil, political and social rights does. The positive obligations of the State are then examined in the light of the Greek courts' jurisprudence on the constitutionality of austerity measures in crisis-ridden Greece, which resulted particularly in cuts in social spending, salaries and pensions. The analysis juxtaposes the well-received past theory in favour of the justiciability of social rights, especially on the basis of the construction of a 'status negativus' for the latter in the form of a 'social acquis', with examples of case law where judicial protection is most needed, that is, during the sovereign debt crisis. The analysis also focuses on the prerequisites for the realization and execution of socio-economically sensitive judgments. Moreover, in doctrinal terms, the democratic accountability of the legislator, as a legitimacy input, here sometimes conflicts with the legitimacy output sought before the courts and from the courts, as a source of legitimacy. The 'counter-majoritarian difficulty', being a common topos in the relevant discussion, seems to be reinforced here as the courts are called upon to play a political role outside their ideal-typical function, which is to protect minorities and the individual against the majority represented by the legislator. The boundaries drawn by the very essence of the matter, i.e. the materiality and scarcity of resources and the political texture of the decisions to be taken concerning the reallocation of such scarce resources, here come to the fore. The question of the justiciability of 'social rights' becomes a question of competence and democratic legitimacy. They both speak in favour of the legislator, when the resulting obligation of the State is a positive one ('status positivus'), and, thus, the "minimum rational basis review", instead of strict scrutiny, should be applied.